STATE v. LISLE (2022)

Defendant appeals his convictions after a bench trial of unlawful delivery of heroin, ORS 475.850 (Count 1); unlawful possession of heroin, ORS 475.854 (Count 2); unlawful delivery of methamphetamine, ORS 475.870 (Count 3); unlawful possession of methamphetamine, ORS 475.874 (Count 4); and felon in possession of a firearm, ORS 166.270 (Count 5). The court merged the verdicts on Counts 1 and 2 and Counts 3 and 4.

We reject without discussion defendant's first assignment of error, in which he contends that a warrant for a police search of his hotel room was not supported by probable cause.

In his second assignment, defendant contends that the trial court erred in denying his motion for a judgment of acquittal on the delivery counts, because they were based on a theory of delivery under State v. Boyd, 92 Or. App. 51, 756 P.2d 1276, rev. den., 307 Or. 77, 763 P.2d 731 (1988)—that defendant took a substantial step toward a completed delivery—that we have recently rejected in State v. Hubbell, 314 Or. App. 844, 500 P.3d 728 (2021), rev. allowed, 369 Or. 504, 506 P.3d 411 (2022). Defendant's trial occurred before we decided Hubbell, in which we overruled Boyd and held that an “attempted transfer” as used in the definition of “delivery,” ORS 475.005(8), refers to a particular act of transferring, not possession with a more generalized intent to deal the drugs at some undetermined point in the future. Hubbell, 314 Or. App. at 870, 500 P.3d 728.

The state concedes error under Hubbell. We agree and accept the state's concession. As in Hubbell, the evidence here was legally sufficient to support a finding of a substantial step toward the completed crime of delivery of a controlled substance. We therefore reverse the delivery convictions on Counts 1 and 3 and remand for entry of convictions for the lesser-included crimes of attempted delivery of heroin and methamphetamine.

Convictions on Counts 1 and 3 for delivery of heroin and methamphetamine reversed and remanded for entry of convictions for attempted delivery of heroin and methamphetamine; remanded for resentencing; otherwise affirmed.

PER CURIAM